Protection of particularly sensitive sea areas under international marine environmental law

Volume26/Number 1/January1993 (1025 326X/93 S6.110+(1.111) © 1993 Pergamon Press Ltd

Marine Pollution Bulletin, Volume 26. No. I, pp. 9-13, 1993. Printed in Great Britain.

Protection of Particularly Sensitive Sea Areas Under International Marine Environmental Law Report of the International Meeting of Legal Experts on Particularly Sensitive Sea Areas University of Hull, 2 0 - 2 1 July 1 9 9 2 KRISTINA M. GJERDE and DAVID ONG Law School, UniversiO' of Hull, Hull HU6 7RX, UK

An international group of legal experts met at the University of Hull from 20 to 21 July 1993 to discuss the emerging concept of Particularly Sensitive Sea Areas (PSAs). The meeting was organized and hosted by the Law School of the University of Hull, with the cooperation and assistance of the International Maritime Organization. Participants, experts in international law and management of marine protected areas, were drawn from government agencies, intergovernmental organizations, universities, and non-governmental organizations, but were invited in their individual capacities. The PSA concept has been developed at the International Maritime Organization (IMO) to promote international recognition and protection of significant marine areas vulnerable to the effects of maritime activities. The Experts Meeting reviewed existing mechanisms under international maritime and marine environmental law for protection of sensitive areas in order to identify any shortcomings in this field. The experts generally concluded that the PSA concept could serve as an important vehicle to enhance integrated management of marine protected areas but that it required further development to achieve this purpose. Existing legal instruments may need to be amended and new mechanisms created.

Background A Particularly Sensitive Sea Area has been defined b~ the International Maritime Organization as "an area which needs special protection through action by IMO because of its significance for recognized ecological or socio-economic or scientific reasons and which may be vulnerable to environmental damage by maritime activities" (Andren, 1992). The importance of the PSA concept lies in the fact that international law, as reflected in the United Nations Convention on Law of the Sea, 1982 (UNCLOS) and other international legal instruments, limits jurisdiction and enforcement capabilities of coastal States' in their

offshore waters: a coastal State's regulations regarding marine environmental protection must not 'hamper' innocent passage through its territorial sea or interfere with freedom of navigation in its exclusive economic zones (EEZs) (see UNCLOS Article 211). The further a ship is from the coast, the less authority a coastal state has to take protective measures to safeguard the marine environment. Notwithstanding these legally determined boundaries, some marine ecosystems, such as the Great Barrier Reef and the Florida Keys reef tract, may straddle a variety of jurisdictional zones, from internal waters through the territorial sea to the exclusive economic zone. Differences in jurisdiction and enforcement capabilities may lead to difficulties in establishing coherent and effective management regimes for marine protected areas (French, 1990). For example, a coastal State must generally apply to IMO for authorization to impose certain routeing measures in its EEZ that it can impose tmilaterally in its territorial sea. Even when a routeing measure is authorized and comes into effect, enforcement capabilities are limited: a coastal State may only institute proceedings and detain a vessel in the EEZ if its illegal act results in a discharge and the discharge causes or threatens to cause major damage UNCLOS Article 220.6). Thus a coastal State must wait for damage (a discharge) to occur before responding to a violation of its laws. Rising awareness of the ecological and economic importance of the marine environment, coupled with its increasing degradation, has led many coastal States to recognize the need for integrated management of marine ecosystems that takes a precautionary approach. This awareness is reflected in Chapter 17 of the United Nations Conference on Environment and Development (UNCED) document Agenda 21' regarding protection of the marine environment, which calls for ~'approaches that are integrated in content and are precautionary and anticipatory in ambit" (Agenda 21, para. l 7.1 ). Awareness of environmental threats posed by maritime activities such as shipping has grown commensurately. Paragraph 17.31 of Agenda 21 also calls for the assessment, by States, IMO, and other relevant international organizations, of the need for additional measures to address degradation of the marine environment from shipping by inter alia "'assessing the state of pollution caused by ships in particularly sensitive areas identified by IMO and taking action to implement applicable measures, where necessary, within such areas to ensure compliance with generally accepted international regulations." ( 17.31 (a)(iv).)

History of the PSA Concept The concept of Particularly Sensitive Sea Areas was

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introduced in 1978 through Resolution 9 of the International Conference on Tanker Safety and Pollution Prevention (convened by IMO) which called for special protection for "areas of particular value because of their renewable natural resources or their importance for scientific purposes" (Peet, 1992). After several years of deliberations in technical bodies, primarily the Marine Environment Protection Committee (MEPC), the IMO Assembly approved "Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas" (A17/Res.720 9 January 1992) (the 'Guidelines'). Friends of the Earth International, an accredited observer to IMO, played a leading role in drafting the Guidelines and in ensuring their ultimate adoption by the IMO Assembly. The primary purpose of the Guidelines is to assemble and analyse opportunities offered by certain IMO Conventions (e.g. the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 (MARPOL 73/78), the International Convention for the Safety of Life at Sea, 1974 (SOLAS), and the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG) to provide extra protection to already existing marine protected areas, especially those extending beyond the territorial sea. The Guidelines detail the criteria for identifying a particularly sensitive sea area and the process for applying to IMO for approval of various protective measures. The innovative element in the Guidelines is the establishment of a procedure for coatal States to obtain international recognition of a 'particularly sensitive sea area'. The maritime measures that are envisaged in the Guidelines for the protection of particularly sensitive areas are: • to designate an area as a 'special area' (under MARPOL 73/78), or require ships to comply with specific discharge restrictions; • to institute routeing measures (such as traffic separation schemes, precautionary areas or areas to be avoided) to restrict access to the area by ships or improve safety of navigation (under SOLAS, COLREG and the General Provisions for Ships' Routeing); or • to adopt other special measures such as compulsory pilotage or vessel traffic management systems (see Guidelines, Table 2). Criteria for identification of PSAs are deliberately straightforward. In order for an area to be identified as a PSA, it must meet at least one of the given criteria. These criteria relate to: significant ecological characteristics (uniqueness, dependency, representativeness, diversity, productivity, naturalness, integrity, and vulnerability); social, cultural and economic values (economic benefit, recreation, human dependency); and scientific and educational values (research, baselines and monitoring studies), education, historical value (Guidelines, paras. 3.3.4-3.3.7). So far, only one area has been officially 'identified' as a Particularly Sensitive Area: the Great Barrier Reef Region (November 1990). At the same time, Australia requested IMO to endorse a scheme for compulsory 10

pilotage for navigation in part of the area (Andren, 1992). Recognizing the potential legal complexities involved in the implementation of the PSA concept, the Law School of the University of Hull offered to convene, with the cooperation and assistance of IMO, an international meeting of legal experts during the summer of 1992. The Meeting was convened in the context of ongoing discussions at IMO's Marine Environment Protection Committee to enable further elaboration of the legal issues involved in development of the PSA concept.

Discussion The Meeting of Legal Experts commenced with presentations by four speakers who provided background information regarding IMO and Particularly Sensitive Sea Areas (Andren, 1992), a history of the evolution of the PSA concept (Peet, 1992), and two case studies on marine protected areas management in the Netherlands and the United States (IJlstra, 1992; Joseph, 1992). These papers will be published in a special issue of the International Journal of Marine and Coastal Law in 1993. The main points of discussion and conclusions of the Meeting are highlighted below: International legal aspects of marine protected areas Regarding the international legal aspects of marine protected areas, it was noted that integrated management of such areas may require measures of three kinds: • protective measures adopted by coastal states that do not affect international interests; • protective measures adopted by coastal states that may affect international interests, but are recognized as being within the competence and jurisdiction of the coastal states under generally accepted international law; • protective measures that may be necessary to ensure comprehensive protection of a sensitive area but lie beyond coastal state competence to be imposed unilaterally and must be pursued through the appropriate international legal channels. Recognition of the PSA concept in international law could provide a means of implementing this third category of measures. Marine protected areas and IMO Most marine protected areas will not require measures that necessitate approval by IMO. Marine protected areas generally are adjacent to or lie very close to the shore, i.e. within internal waters or the territorial sea, where coastal states have greater authority to prescribe regulations to protect the marine environment. However, for the few protected areas that extend beyond the territorial sea, additional assistance from IMO may by necessary. Strengths and weaknesses of the PSA concept Most participants at the Meeting agreed that the PSA concept represents a dynamic approach to the protection of marine areas, permitting a range of measures

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to be taken, as and where appropriate. It further provides an opportunity for a holistic approach to counteracting environmental threats rather than a simple sectoral one, though its emphasis is on shipping activities. Most participants at the Meeting therefore agreed that the existing criteria to identify PSAs should be complemented by an adequate legal regime designed to enable effective protection of the areas. However, the criteria should be reviewed after several years of practice to determine whether evaluation of the merits of each case would be simplified if the criteria were more clearly defined. A minority (2 of the 14 participants) thought that the PSA concept was duplicative of existing measures and that existing measures were adequate. The summary below generally reflects the view of all but these two participants.

Protection of PSAs under M A R P O L 73/78 The Guidelines foresee several ways to protect PSAs from intentional ship-generated discharges. However only one method is currently available and it may not always be appropriate. As noted above, a coastal State may seek to designate a PSA as a 'special area' under annexes I, II or V of MARPOL 73/78. (MARPOL Annexes I, II, and V contain regulations to prevent pollution from oil, noxious liquid substances and garbage respectively. Annex IV (sewage) is not yet in force, but could be very important to PSA protection.) However, the criteria for special areas under MARPOL are stricter than the criteria for PSAs. Thus special area status might not always be available for a PSA. Moreover, for a special area to come into effect, there must be evidence of the availability of adequate reception facilities to receive ships' wastes, a requirement that may not be appropriate to a PSA adversely affected by discharges from passing ships not calling on local ports. Accordingly, certain PSAs may need protection from intentional discharges from ships, but may not receive it. The Meeting generally agreed that the various annexes of MARPOL could be amended to authorize special discharge regulations for PSAs (based on discharge restrictions applicable inside the special areas). Other means to control ship-generated discharges In addition to special discharge restrictions, another way proposed by the Guidelines to limit operational pollution in small areas is by limiting access of ships into such areas. Ships' routeing measures have traditionally been used to enhance safety of navigation, with environmental protection as a secondary benefit. When the IMO Assembly adopted the Guidelines by Resolution A.720(17), it also requested the Maritime Safety Committee to incorporate relevant provisions of the Guidelines into the General Provisions on Ships' Routeing. This would expressly permit the use of ships' routeing measures for purely environmental purposes. So far, the Maritime Safety Committee has not acted on this request. The Meeting generally agreed that such a step was necessary and useful to promote protection of PSAs.

Legal basis for special protection measures The Meeting carefully scrutinized provisions of UNCLOS for the legal basis for these special protection measures. Article 211.5 of UNCLOS authorizes coastal States to "adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference". This provision reflects the authority of the IMO to adopt measures regarding the prevention of pollution in these areas. In addition, Article 211.6(a) of UNCLOS envisages the possibility of coastal States applying to IMO as the competent international organization for authority to impose special mandatory measures to protect "particular, clearly defined areas of their respective EEZs" where protection from pollution from ships is believed necessary "for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic". Such measures can include limitation of operational discharges and regulation of navigational practices. Thus UNCLOS Articles 211.5 and 211.6 provide a good basis for further development of PSA as a concept of international law and for the development of'special mandatory' measures for PSAs. Special mandatory measures under UNCLOS Further regarding Article 211.6 of UNCLOS, in certain instances (e.g. areas of extreme vulnerability and a history of non-compliance by certain vessels with existing protective measures) it could be advantageous to prescribe mandatory routeing measures or other special requirements that are stricter than those provided under existing instruments. For example, with IMO approval, an Area to be Avoided could be made compulsory, rather than advisory. The Guidelines indicate that compulsory pilotage or vessel traffic services in conjunction with mandatory ship reporting may be especially useful to control the passage of ships carrying environmentally sensitive cargoes through or around PSAs. These could be seen as the types of measures envisaged in UNCLOS Article 211.6. Accordingly Article 211.6 could provide the legal basis for the further development of compulsory ships reporting and pilotage, and other mandatory measures to protect PSAs. Other ship-related threats to PSAs The definition of 'pollution' under UNCLOS falls short of covering the full range of ship-related threats to marine protected areas and wildlife. The definition of 'pollution' under UNCLOS Article 1 refers only to the "introduction of substances or energy7 This is not comprehensive enough to provide for the development of measures under UNCLOS Article 211.6 to protect sensitive areas such as breeding or calving grounds from noise pollution or physical disturbance. Existing measures may need to be adapted or new measures developed to reflect these broader concerns. The use of 11

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ships routeing measures for this purpose may be a useful means to enhance protection of PSAs.

ation of relevant UNCLOS provisions to allow for the development of such capabilities.

Relationship between PSAs and Regional Seas Programmes

Concerns regarding development of the PSA concept

The relationship between PSAs and regional efforts to protect marine areas is close and interdependent. Regional seas protocols for the establishment of marine protected areas (such as the 1982 Geneva Protocol concerning Mediterranean Specially Protected Areas to the 1976 Barcelona Convention for the Protection of the Mediterranean against Pollution and the 1990 Kingston Protocol concerning Specially Protected Areas and Wildlife to the 1983 Cartagena Convention for the Protection and Development of the Wider Caribbean Region) refer back to customary international law to guide coastal states regarding appropriate measures to prevent damage from ships. Such agreements therefore require coordination with IMO regarding measures relating to shipping and navigation within or affecting marine protected areas. Regional seas programmes could enhance such efforts by assisting in the identification of PSAs, the assessment of whether current measures for the regulation of ship activities are adequate, and the development of appropriate proposals to IMO, either on a case by case basis or for the region as a whole.

State obligations concerning PSAs Coastal States should possibly have some reciprocal obligations with respect to providing comprehensive protection to PSAs. For example, coastal States could be obliged to introduce vessel traffic services or create and implement contingency plans for accidental pollution. Coastal sensitivity mapping would also be of assistance. As the definition of PSAs simply refers to "maritime activities", such obligations might further extend to regulating such activities as fishing, ocean dumping, offshore oil and gas development or dredging. However, many of these activities are currently beyond the scope of IMO to regulate. Nevertheless, they do fall within the general State obligation of UNCLOS Article 194.5 to "protect and preserve rare and fragile ecosystems".

Regarding further development of the PSA concept, two participants had three major concerns: 1. fear of abuse of the concept for non-environmental reasons; 2. fear of added shipping costs due to additional precautionary measures; and 3. fear that accommodation of coastal States' concerns in this regard may unravel the delicate balance struck in UNCLOS between freedom of navigation and protection of the marine environment. However, the majority felt that cooperation within the context of IMO should serve to alleviate most of these concerns. Coupled with UNCLOS Article 211.6, the PSA concept can provide a mechanism for balancing the interests of coastal States--and the global community--in protecting sensitive marine ecosystems from risk of harm against the inconvenience imposed on navigational interests, a mechanism that UNCLOS otherwise lacks. It should be preferable to have this balancing done on a multilateral basis through IMO and its expert Committees than on a unilateral basis where there is greater risk of arbitrary action. Furthermore, the polluter pays principle is becoming a globally acceptable way of doing business. Added up-front shipping costs may prevent ecosystem degradation and save lives, economic resources and clean-up costs in the long run. And some measures, such as ships' reporting, may cost nothing at all.

PSAs and protection of the global marine environment In recognition of ongoing efforts to enhance protection of the marine environment on a global basis, the Meeting emphasized that efforts to enhance the protection of PSAs should not detract from such global efforts. Recent amendment of MARPOUs Annex I to raise global discharge standards for oily wastes to those currently in effect only in MARPOL Special Areas is one example. However, when measures for global improvements are proposed, they should recognize and be based on the vulnerabilities of the most sensitive ecosystems, and thereby complement national efforts to protect sensitive areas.

Further development of PSA concept The Meeting generally agreed that further consideration should be given to using PSA status as the basis for developing an international instrument for the integrated management of marine protected areas. Such an instrument could serve as a means of harmonizing existing international conventions and other legal instruments relating to the protection of marine areas with protective measures provided by IMO Conventions. Future consideration of the PSA concept should also address whether it should be further developed, possibly through the new international legal instrument, so as to provide a basis for uniform enforcement capabilities throughout areas straddling various jurisdictional zones. As this affects the jurisdictional scheme set forth under UNCLOS, this may require an evalu12

Comments The issues addressed at the Hull Meeting are pertinent to a variety of discussions going on elsewhere. For example, IMO's Legal Committee and Maritime Safety Committee are currently grappling with the issue of mandatory ship reporting in conjunction with vessel traffic services. The question is whether a coastal State may require a foreign ship to identify itself, and report its position, cargo and destination when the vessel is passing through a coastal State's EEZ. Most States believe that (in certain circumstances) a coastal State should be able to require foreign vessels to report to vessel traffic services. Such a requirement would enable a vessel traffic controller to warn a foreign ship that it is off course and entering a hazardous area anywhere

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within the VTS's reach. Certain States, however, question the legal basis for this reporting requirement. A potential legal basis for this is Article 211.6 of UNCLOS and its provision for the creation of 'special mandatory measures' applicable inside coastal States' exclusive economic zones. In addition, the furore arising over shipment of plutonium demonstrates that coastal States are becoming increasingly alarmed about their lack of control over shipping activities off their coasts. The PSA concept may provide an outlet to prevent unilateral actions by coastal States legitimately concerned fi~r the security of their marine environment. In summary, the PSA concept currently serves to provide international recognition to significant marine areas requiring special protection from maritime threats. In its present form, it can serve as an important means to co-ordinate and supplement international and regional protected areas and wildlife agreements that rely on IMO for regulation of certain maritime activities. More importantly, the PSA concept has the potential to enable comprehensive management of marine protected areas and ecosystems, regardless of manmade boundaries. It can be an invaluable balancing mechanism whereby the environmental concerns of coastal States are heard and responded to inside an international arena well aware of the hazards of maritime navigation.

The preparatory process for the Guidelines has already stimulated environmental efforts inside the IMO and by its Member States. In the immediate future, further action by IMO will be required to develop an adequate repertoire of measures to protect particularly sensitive sea areas. At the same time, much can be done at the national level to effectively implement existing measures. Both paths are necessary to fully incorporate a precautionary approach to protection of the global marine environment.

Andren, L. (1992). The Designation of Special Areas and Particularly Sensitive Areas under IMO's Regulatory Regime for Shipping. IV World Congress on National Parks and Protected Areas, Caracas, Venezuela, 10-21 February, 1992. French, G. (1990). Legal Mechanisms for Protection and Preservation of the Marine Environment: Their Relationship to Particularly Sensitive Areas. International Seminar on Protection of Sensitive Sea Areas, Malmo, Sweden 25-28 September, 1990. IJIstra, T. (1992). Area Protection in the North Sea. Paper prepared for International Meeting of Legal Experts, University of Hull Law School 20-21 July, 1992. Joseph, B. (1992). Marine Protected Areas Management in the United States: its Relevance to the PSA Concept. Paper prepared for International Meeting of Legal Experts, University of Hull Law School 20-21 July, 1992. Peet, G. (1992). Particularly Sensitive (Sea) Areas: from the 1978 Resolution to the 1991 Guidelines. Paper prepared for International Meeting of Legal Experts, University of Hull Law School 20 21 July, 1992.

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